A Spy-Gear Arms Race Transforms Modern Divorce

By

Steve Eder and

Jennifer Valentino-DeVries

October 6, 2012

Danny Lee Hormann suspected his wife was having an affair. So the 46-year-old Minnesota man installed spying software on his wife's cellphone and the family computer, and stuck a GPS device to her car, letting him follow her to a lakeside cabin one night.

"It was awful," says Michele Mathias, his 51-year-old ex-wife, who denies cheating on him. She says she was so worried about her husband's spying that she and her children searched their garage for cameras and held whispered conversations on the lawn in case he was recording indoors. "It wasn't just invasion of my privacy. It was an invasion of the privacy of everyone who ever texted me or anyone who was ever on my computer."

ENLARGE

Jay Ciccarone pleaded not guilty to criminal charges on claims he put spyware on his family?s PC.
Scott Lewis for The Wall Street Journal

The sleuthing got Mr. Hormann thrown in jail for 30 days, convicted of stalking his wife. "Whenever I tell people about this," Mr. Hormann said, "They say, 'I'd have done the same damn thing.' " He adds: "The technology just amazes me."

Mr. Hormann's tactics reflect a new reality for suspicious spouses. Supplied by a tech industry that is making James Bond-like gadgets more affordable and easier to use, they are taking investigations into their own hands.

Techniques once accessible only to governments or corporations are now trickling down to daily use. It's part of a broader transformation of modern privacy in which even the most personal spheres of people's lives—home, friendships, intimacy—can be exposed for examination without knowledge or consent.

Lawyers say the technology is turning divorces into an arms race. Gerry Lane, a marriage counselor in Atlanta, says almost every infidelity case he sees started with a spying spouse. "If someone begins to have thoughts that they are being betrayed, they become obsessed with finding out the truth," Mr. Lane said. "Privacy does not exist in 2012."

Three companies that sell GPS trackers said sales are soaring. A BrickHouse Security executive said sales of tiny devices that can be placed in a bag or clothing have been "almost doubling" each of the past three years. Another maker, LandAirSea Systems Inc., said that so far this year it has sold about 15,000 of the devices, some of which magnetically attach to cars, already surpassing 2011's full-year sales. SpygearGadgets.com said sales of nannycams and hidden cameras are up 40% this year, and GPS tracking devices almost 80%.

More than three dozen people interviewed, including family lawyers, prosecutors, private investigators, gadget retailers and marriage counselors, as well as individuals who have gone through divorces themselves, said that spouses are embracing snooping technology. A February report by the American Academy of Matrimonial Lawyers found that 92% of lawyers surveyed had seen an increase in evidence from smartphones the past three years, citing in particular text messages, emails, call histories and GPS location information.

The legality of spousal spying is complicated. Not all courts agree on what constitutes a "reasonable expectation of privacy" in a marriage.

In one 2011 Nebraska case, a mother who embedded a listening device in her daughter's teddy bear to record the girl's father was found guilty of violating the Federal Wiretap Act. And in a 2008 Iowa ruling, a court found that a man had violated his wife's privacy by taping her with a camera surreptitiously installed in an alarm clock in her bedroom in their home.

All together, at least five of the 13 U.S. circuit courts have found that the Federal Wiretap Act does prohibit surveillance within marriages. But at least two have ruled that the law doesn't prohibit recording your spouse.

ENLARGE

A hidden-camera bear in a spy shop
Philip Montgomery for The Wall Street Journal

In October 2010, for instance, a federal judge in Texas ruled against Rhea Bagley, who, while divorcing her husband, sued him over allegations that he had put spyware on a computer she used and placed a recording device in the family home before he moved out. District Court Judge Lee Rosenthal cited a 1974 circuit court precedent that the Federal Wiretap Act didn't apply to "interspousal wiretaps."

Ms. Bagley, in an interview, said that when someone knows that everything they are doing on their computer or that their private conversations have been recorded, "You feel like your privacy has been violated."

For his part, her ex-husband, Larry Bagley, said he felt he had a right to know what was going on in his home, particularly because, among other things, he was paying the bills. "I feel that if you are married to somebody, you should know everything," said Mr. Bagley, 41 years old.

Some of the most common forms of tech snooping are the simplest, divorce lawyers say. When someone leaves a smartphone or computer unattended, a curious spouse might quickly thumb through emails.

Occasionally, both husband and wife are spying on each other. In Oakland County, Mich., prosecutors charged Leon Walker under the state's antihacking statute after he read his wife's emails in a password-protected account on a shared computer. Then, this past July, they dropped the charge, claiming that his wife was snooping, too, by reading his text messages.

"If you arrest a spouse for something as trivial as this, then you are going to have to arrest the entire world," said Mr. Walker, 34 years old, in an interview. His wife declined to comment through her lawyer.

Divorce and privacy laws vary nationwide, and it is far from settled whether evidence discovered this way would be admissible in a divorce proceeding. However, if the information is used to harass or intimidate someone, a person can face prosecution for stalking or related offenses.

"Stalking laws differ by state, but usually the main element is that there is fear" felt by the victim, said Cindy Southworth of the National Network to End Domestic Violence. Spouses using spying tools could also run afoul of wiretap, cybercrime or trespass laws, or they may expose themselves to civil suits.

ENLARGE

The hidden-camera bear
Philip Montgomery for The Wall Street Journal

Amateur spies have widening options. LandAirSea sells a GPS Tracking Key—a matchbox-size, magnetized gizmo that can stick to cars—for $179 online, far cheaper and more powerful than primitive GPS devices that 20 years ago cost thousands of dollars. Software can be purchased for many smartphones that can track their location. Computer software that copies instant messages and emails can cost less than $100 and be installed without any special know-how. An array of tiny recorders makes eavesdropping easy.

Regulators have a tough time policing the sale of these kinds of devices, since they have legitimate uses by employers or parents. In 2008, the Federal Trade Commission filed a lawsuit against a spyware seller that claimed its software, called RemoteSpy, was a "100% undetectable" way to "Spy on Anyone. From Anywhere."

‘You feel like your privacy has been violated’

—Rhea Bagley, whose husband used spyware and a recording device in their home

‘If you are married to somebody, you should know everything’

—Larry Bagley

The agency charged the company, CyberSpy Software LLC, with unfair and deceptive practices. In a 2010 settlement, the FTC prevented the company from advertising that the software could be used to spy on people without their knowledge, and it required the software to obtain consent from a computer owner before installation.

CyberSpy didn't admit wrongdoing in the settlement and denied it had violated any laws or regulations. The company still sells the $89.95 software but has changed its marketing pitch. Now the website says: "Especially perfect for those who want to monitor their employees or children, while away from home or work!"

CyberSpy's chief executive, Tracer Spence, said the company's practices met industry norms at the time. He said U.S. companies like his have since changed their products and advertising "to avert a possible run-in with the FTC."

With spyware so affordable, divorce lawyers say they advise clients to buy new computers to avoid the chance that any computers they previously used, or shared with a spouse, are bugged. Some lawyers also say they have begun pre-emptively warning clients that they could run afoul of state or federal laws if they snoop themselves.

"People are dying to know if their spouses are cheating," said Randall Kessler, past head of the American Bar Association's family-law section. "You can have all the laws you want, but I think this is going to go on."

In suburban Atlanta, private investigator T.J. Ward said that his firm, which is handling roughly 80 spousal investigations, is currently tracking about five cars using GPS. It is a standard service he has offered for several years, he said, adding that he has seen the technology improve significantly.

Beyond using tracking gadgets to try to catch cheaters or trace assets, Mr. Ward said his firm also offers clients counter-surveillance options to see if a spouse is spying on them. Sweeping a home for bugs costs roughly $5,000. A cellphone scan runs about $500.

"There is so much technology out there," Mr. Ward said. "You've got to be able to counter."

In 2009, Georgia State Rep. Kevin Levitas sponsored legislation to outlaw the electronic tracking of a person's location or movements without consent. "You know in your gut that that violates some reasonable expectation of privacy," said Mr. Levitas, who retired in 2010.

The bill, which eventually stalled, included exceptions for private investigators, employers tracking company cars, and parents keeping tabs on their kids. It likely wouldn't have applied to spousal tracking, because a car typically would be considered marital property, Mr. Levitas said. In other words, either spouse could make a case for tracking the car under the premise that they own it.

Near Philadelphia, Jay Ciccarone, a father of two young boys, is facing criminal charges stemming from allegations he installed a $97 spyware program on his family's computer.

In September 2010, about six months after Mr. Ciccarone filed to divorce his now ex-wife, she went to police claiming he had been monitoring her, according to court records. According to the records, Mr. Ciccarone's ex-wife told police she discovered his alleged spying when he left his personal email account logged in on the family computer, and she read an email he had written to his lawyer.

She didn't respond to requests for comment.

Nearly a year later, police arrested Mr. Ciccarone and charged him with unlawfully using a computer, intercepting electronic and oral communications, and unlawfully accessing stored communications. Mr. Ciccarone is accused of using a program called Web Watcher, which is designed to record all activity on a computer—capturing email, logging keystrokes and monitoring Internet activity. He has pleaded not guilty and is seeking to have his case dismissed.

Mr. Ciccarone, in an interview, questioned why he was charged when his ex-wife didn't face consequences for reading his email. "I think the case should have been ended right there," Mr. Ciccarone said. "Where is the right to my privacy?"

Tom Hogan, the district attorney in Chester County, Pa., declined to comment specifics of the case. Speaking in general terms, he said, simply looking at an email from an account left open on a family computer probably wouldn't be viewed in the same light as using spyware to intercept messages.

Mr. Hormann, who lives about two hours outside Minneapolis, said he got the idea of sticking a GPS tracker on his wife's car in 2009 from an ad. The one he bought let him observe in real time where his wife drove her Mitsubishi Eclipse. It cost him $500 to buy, plus a monthly fee.

"Pretty amazing stuff," said Mr. Hormann, a former investment salesman and now a truck driver. At least four times in late 2009 and early 2010, he used it to locate his then-wife, Ms. Mathias, court records say.

Ms. Mathias said she and her three children suspected for some time that Mr. Hormann was spying. "He knew where I was constantly," Ms. Mathias said. She said she never cheated. "If you have a device on your phone, your computer, your car," she said, "how the hell are you supposed to have any affairs?"

In March 2010, the month she filed for divorce, Ms. Mathias had a mechanic look for a tracking device. One was found magnetically attached to the car's underside. She contacted police and the county prosecutor charged Mr. Hormann with stalking and using a mobile tracking device on her car.

"She couldn't leave the house without him knowing exactly what she was doing," said prosecutor Tim Hochsprung.

In July, 2010, a jury convicted Mr. Hormann of two charges, stalking and tracking the car. He spent 30 days in jail. On appeal, a judge reversed the tracking charge, saying he had "sufficient ownership interest" of the car and thus could legally track its whereabouts.

"I maintain that it should cost as much to get married as it does to get divorced. Make it look like marriage is worth as much as divorce, even if it ain’t. That would also make the preachers financially independent like it has the lawyers."

Personally I believe that anyone who gets married is a fool, marriage has no place in our culture given the current laws which primarily punish the men and favor the women. Nor do you need marriage to have children, yeah you may be paying child support, but you won't be paying alimony and there will be no property settlement.

Because we have lost our values and have no interest in finding our values we will ABSOLUTELY get socialism and ORGANIZED religion. That is exactly what happens when people stop giving to the poor--- WE get replaced. It's about perfection.

While I have never been married, I would think that if the trust in the relationship ever broke down to this level that a divorce should already be well on the way. What is more pathetic are some of the comments for this article. People should establish relationships that they are comfortable with. If that means staying single, then so be it. If that means marrying an individual for life, then so be it as well. The one thing that should be common in each of these scenarios, or more, is honesty between individuals about what they want and what they are capable of handling. Anything to the contrary is not only immoral, but ironically anti-social in its own way. What I see today is a fundamental break down in how people respect other individuals, and cheating is probably one of the bigger examples.

Look, you ask yourself, whether she'd want to be married to you assuming that she is cheating. Then, you slowly deprive her of that thing. I'm not going to go into a dissertation here, but whatever it is, you can make her feel deprived of it.

And you watch how she responds. How she responds and what she clamors for will tell you everything.

I bet that the technology is proving highly effective in allowing these men to determine if their wives are cheating, ergo the backlash. What a world we live in, though, when the moral opprobrium is directed at the victim for wanting to find out the truth (let's face it, a cheating spouse is highly likely to lie, and divorce when children are involved is not a decision taken lightly).

It is certainly reasonable to want to know if your wife is cheating on you.

Odd. You can be guilty of stalking your wife, even when you are not legally separated. Maybe you can be guilty of harassment by asking her where she goes when she goes out at night and who her friends are. After all, she might feel threatened by your questions.

Left out of this article was the financial harm these suspicious husbands suffered from the divorce. You know, it doesn't matter one bit if she cheated or not. No fault divorce is grand. She still gets to ruin you financially in the divorce, and takes the kids if she wants.

We are constantly subjected to articles about the poor young people burdened by their college debts, debts they knowingly and willingly incurred. We don't hear much about men burdened by child support and alimony after their wives divorce them. Maybe when they start throwing student debtors into prison for non-payment, I might feel sorry for them.

While it is too late for many men to avoid this fate (marriage), I hope that young men take notice.

Regardless of what the court determines in something like marriage, peoples desire to know what's really going on will be the determining factor. You have to be very careful you don't start talking about things you haven't discussed yet.

Ms. Mathias said she and her three children suspected for some time that Mr. Hormann was spying. "He knew where I was constantly," Ms. Mathias said. She said she never cheated. "If you have a device on your phone, your computer, your car," she said, "how the hell are you supposed to have any affairs

Nah...why bother? (Most) old guys know exactly why a pretty young girl wants to marry them. They're OK with it too. Think about it. What man with real money would be offended by the fact that a beautiful girl wants to be with him because he's rich?

I agree with you. The state originally made these laws to ensure they did not have to pay for women with children that did not work. Now that we have equality these laws do not make sense.

Why would a man (or woman) get married when he/she has a 50% chance of losing 50% of his wealth, a painful drawn out process that fills the pockets of lawyers ? Why is marriage associated with money and financial penalties ? Do we not marry love etc. If things go wrong , do we need to be paid ? Children are a special case and need due consideration, but alimony is a joke.

The laws with respect to divorce or nothing more than laws to enrich lawyers, enrich the state with fees, and to severely punish men. Ironically the laws are now punishing women that have high incomes too.

The IRS and corporations love marriage because one persons debt becomes the debt of a couple. Two people to collect debt from , rather than one person. There is significant financial benefits for NOT getting married. People need to get smarter and see the hypocrisy of our laws.

Charleen is absolutely right. Marriage can be a very tricky thing. It's not the idealized relationship you get in books and movies. You can't discuss marriage with such a broad brush. As Tolstoy said in Anna Karenina "Every unhappy family is unhappy in its own way."

I've been married (now very hapily divorced for several years), and almost all of my friends are married or have been married. Not a single one of my married friends is happily married. To have a happy marriage, I think you either have to be lucky, or you have to put a LOT of effort into it.

You said "People should establish relationships that they are comfortable with." That's sounds great, but the problem with marriage is that YOU are not in total control of the relationship; so your spouse has a tremendous amount of influence over whether you are comfortable or not. It's not really up to you.

to the other boor, Jerry - Wrong. One judge claimed that since the husband owned the car, he had an ownership interest in the whereabouts of the car via GPS. The judge never claimed he had a right to spy on his wife. So, if your wifes car is in her name, you are out of luck.

What is wrong with you? Do you not live under a legal system, or do you think you have the right to do as you please? And I'm no liberal, I just respect other's privacy. You should try it sometime instead of being such a colossal boor.

A very large number of men in China cheat. Having mistresses is rather common and not only for the CCP members with millions in their Swiss accounts, but even for the middle class males as their income has gone up. As they need females to cheat with by default, it would be a mathematical impossibility to claim that all the women involved in these affairs are not cheating on someone else themselves. Not unless each one of them is cheating with multiple men or is forever unmarried.

There's a distinction in the law between personal observation and reconnaissance and electronic surveillance. One does not have a reasonable expectation of privacy for things done in public view. An investigator would be liable to the same extent as a spouse if (s)he used a computer or recording device to intrude on someone's communication's without that person's consent (note, however, that in many states surveillance is legal if the communication is not interstate and at least one party to the conversation consents).

Because laws in many states now prohibit do-it-yourself tracking but still allow private investigators to do it.

It may seem unfair to have such a double standard (and you can point to the PIs' lobbyists as the source), but if someone does hire a legitimate PI then that someone is not likely to do something illegal against the spouse. They are more likely to play by the rules than a DIY spouse-investigator, because among other factors the PI becomes a witness for the police if the law is broken.

"It is certainly reasonable to want to know if your wife is cheating on you. "

No it is not reasonable to want to KNOW if your wife is cheating on you.

Think about it. A divorce is justifiable if there is a reasonable suspicion of infidelity. In many of these cases the aggrieved parties are using the technology because they are uncertain as to whether their suspicions are reasonable, or because they are in denial.

Marry someone with morals and you will never have to suspect them of anything. Marry someone without morals and you should never waste your time on suspicions since you should know anything can happen. Any other position on marriage is irrational and a sign of a controlling personality.

Couldn't agree more. People should keep their mouths shut about their spying until they find all the evidence they need. But I guess their anger and feelings of betrayal get in the way and cause them to brag about the information they have discovered.

There's no difference, but when technology comes into the picture the courts/politicians/people usually have a hard time understanding how to treat it. Thus, it usually gets treated differently. Not a silly question, by the way.

To me, it sounded as if her husband was silly enough to let her know that he knew where she was. It would have been smarter to keep his big mouth shut and keep up the tracking until he found something meaningful.

Naive approach. If you have suspicions, NEVER put them on the table. It allows the cheater to cover their tracks more easily becuase they then know you're looking at their actions more carefully. It makes them more cautious. It's better to do some investigation and confirm your suspicions or let you know they are unfounded.

The court need not address the issue of whether he had a right to reasonably monitor his spouse per se -- the issue was never formally addressed given the fact that the car was his property, and he therefore had a right to do monitor his own property. You therefore can't come to the conclusion, as you have, that the court affirmatively disallowed under the relevant sections of State or Federal law the monitoring of a spouse in order for the man to protect himself and his family from a whole host of potential harms, including sexually transmitted diseases. Note this case does not involve a government action, but an occurrence between two private citizens -- indeed, within the context of the special relationship of marriage.

Well, how superior you must be! Thank you for enlightening the rest of us "boors" and neanderthals with your superior set of ethics (not to mention your condescending tone)! Forget about deception and betrayal of the marriage vows, forget about the risk of sexually transmitted diseases, and forget about the emotional damage that can be done not only to the loyal spouse but also the innocent children -- our superior Glenn Donovan got it all worked out! Thank you, sir!

Alan, I hope you are happy now. I am lucky with my spouse, she always was and still is terrific and we are almost 18 years together. But we were in our 40s when we met, while most people chose a spouse supposedly for life, when thery are very young, and some of them before they are mature. But luck plays a role too.

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